The Supreme Court and Judicial Review
According to two well-known "Washington lawyers" (one of whom is married to Kelly Anne Conway --- man the pillow talk in that household must be interesting), Trump's (sorry I find myself hard-pressed to put the title "President" before his name) pick for Acting Attorney General, in the aftermath of the virtual firing of Jeff Sessions, is "unconstitutional." The primary reason for this is that he has never held a Senate-confirmed post of any kind. (A suit from Maryland is pursuing this avenue of challenge.) Then there is also the well-known matter of Whitaker's pre-judgement in the legitimacy of the Mueller investigation, and its breadth.
And then there is Mr. Whitaker's position on the subject of this column: the role of the United States Supreme Court in the review of actions of both the Federal and State governments to determine their Constitutionality. This role of the Supreme Court, which has weighed heavily in the matter of the operations of the Federal government especially since the Dred Scott decision of 1857 which held that former slaves, regardless of where they lived, were not human beings but were simply property, is not to be found in the Constitution. Indeed, in Article III of the Constitution which defines the Supreme Court and its duties there is no direct provision that gives it the power to review decisions of the other two Branches and declare them "Unconstitutional."
Frederick Douglass, by Steven Weitzman. The great abolitionist, who proclaimed, among other things, the humanity of slaves.
(Image by Mike Licht, NotionsCapital.com) Permission Details DMCA
Rather it was established in a series of decisions of the Supreme Court itself in the early 19th century. Indeed, the third Chief Justice of the United States, John Marshall, made it up, not out of whole cloth but through a series of "if/then" propositions that not everyone at the time, certainly not the Jeffersonians, agreed with. The most famous of these cases was "Marbury v. Madison." As it happens, the new Acting Attorney General, who has cases that may well come before the Supreme Court for a ruling on their constitutionality, supports a position taken by an apparently fairly small number of right-wing lawyers and legal academics that Marbury v. Madison was wrongly decided, and thus Supreme Court's Constitutionality Review power should not exist.
My 1996 book "The 15% Solution: How the Republican Religious Right Took Control of the U.S., 1981-2022" is based on what the Republican Party and the Religious Right would do if they ever took the kind of power they had under the first two years of the Trump Administration. In the book, they move the U.S. government steadily rightward, eventually establishing an apartheid state covering all of the North American continent. Along the way, to facilitate their slow-motion fascist revolution, in "2001" a Chief Justice "Steps" (Scalia, get it?) writes, for the then Right-Wing majority of the Court, an opinion that removes from it the power of Judicial Review. This is the position that Mr. Whitaker adhered, at least at some point in his legal career. Here is that totally fictional decision, in summary form.
Chapter Five 2003: Anderson v. Board of Education
Summary of the Decision (Supreme Court Bulletin)
"Supreme Court Has No Constitutional Review Authority"
Anderson v. Board of Education, Certiorari to United States Court of Ap peals for the Third Circuit.
No. 101"'11. Argued October 31, 2002--Decided May 13, 2003.
Petitioner, a parent acting on behalf of her minor child, brought a civil action against the Board of Education of the State of New Jersey seeking to pre vent it from enforcing a law passed during the 2001 session of the State Legislature mandating voluntary prayer in the public schools of that state. Both the trial and appeals courts in the state of New Jersey found for the respondent. Petitioner appealed to the Supreme Court. With out arguing the merits, respondent filed a brief claiming that under 28 U.S.C., Chap. 81, para. 1260, generally known as the "Helms Amendment [1]," the U.S. Supreme Court did not have jurisdiction in this case.
Held: Under the cited section of the U.S. Code, the Supreme Court has no jurisdiction to review appeals of state school prayer statutes. Further, there can be found in the Constitution of the United States no grant of authority to the Supreme Court to review the action of any other branch of the Federal Government or any branch of any state government for its "constitutionality."
(a) Article 3, Section 2 of the Constitution defines the authority of the Federal judicial power: "The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states."
(b) It is clear that the plain language of this article supports the holding of the Court. Under the Doctrine of Original Intent, by which the Constitution should always be interpreted, it is clear that the Constitution means only what it says, not what any individual judge or group of judges collectively think that it ought to say or would like it to say. It thus be comes clear that the series of decisions handed down by Chief Justice John Marshall and his colleagues in the first quarter of the 19th century which established the theory of Supreme Court "judicial re view" for "constitutionality" were based on faulty legal reasoning.
(c) In the first of these cases, Marbury v. Madison, the Court invalidated an "Act of Congress giving the Court jurisdiction to hear original applications for writs of mandamus, because in such cases the Constitution limits the Supreme Court to appellate jurisdiction" (Cox). While that opinion may be valid, nowhere does the Constitution give the Court the power to apply it with the force of law. Rather, as in Great Britain, the legislative branch, through the will of the majority, is the only appropriate judge of the "constitutionality" of its own acts. In his written opinion, the Chief Justice stated that if "the courts lacked the power to give sting to constitutional safeguards . . . , the Legislative and Executive Branches might too often override the Constitution" (Cox). That may well be true. But if the Founding Fathers had wanted to give the Federal judiciary that "protective" function, they would have clearly writ ten it into the Constitution. Chief Justice Marshall was reading into the Constitution words that he wanted to see -- but were not there.
(d) In Martin v. Hunter's Lessee, Justice Joseph Story expanded the Supreme Court's review powers to include decisions made by the State courts (Cox). Like Chief Justice Marshall, Justice Story was reading into Article 3, Section 2 of the Constitution what he wanted to see there. In Cohens v. Virginia Chief Justice Marshall affirmed Justice Story's conclusion in Martin, using the same faulty reasoning (Cox).
(e) Finally, in McCulloch v. Maryland, Chief Justice Marshall not only reaffirmed the Court's review authority, unstated in the Constitution, but found in it other "implied powers," giving the Congress authority to undertake actions not otherwise specified by the Constitution (in this case renewing the charter of the United States Bank which it had originally established in 1791) (Cox).
(f) After extensive review of the opinions and reasoning in the decisions made in the aforementioned cases, careful review of the language of the Constitution itself, and a consideration of the available evidence on Original Intent, the Court was able to find no basis for the conclusions on "implied powers" that Chief Justice Marshall and his colleagues drew in those decisions referable to the authority of either the Supreme Court or the Congress. Thus, the Court held, the precedents established by those cases and all their successors down through the years were based on faulty reasoning and a reading of the Constitution not in ac cord with the Doctrine of Original Intent. Thus those faulty prece dents must be abandoned. Since the specifics of Marbury, Martin, Cohens, and McCulloch had long since become moot, the Court chose not to reverse those decisions. However, it did reverse the holdings made in those cases that the Supreme Court had any power to review the actions of the Fed eral Execu tive and Legislative branches or any State courts for their "constitutionality."
11 F. 11th 111, Affirmed. Chief Justice Steps delivered the opinion of the Court; seven justices joining, one dissenting.
Author's Commentary [the "author" here being "Jonathan Westminster," the fictional author of "The 15% Solution”]
Anderson v. United States [Author's Note: this is a fictional case that I made up for the novel] was the most significant decision handed down by the Supreme Court in the old United States since Marbury v. Madison, referred to in the decision summary reproduced above. In that case, Chief Jus tice John Marshall had established the power of the Supreme Court to review actions of the two other branches of the Federal government. As correctly noted by Chief Justice Steps that power is no where clearly granted to it by the Constitution itself. Nevertheless, Mar shall said, if the Supreme Court found such actions to be unconstitutional, they were null and void. His reasoning went as follows (Cox):
"The Constitution is either a superior paramount law, un change able by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alter able when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written constitutions are ab surd at tempts, on the part of the people, to limit a power in its own nature illimitable."
Marshall, of course, held that the "former alternative" was true, its truth found in the fact of the Constitution itself. He then drew the defensible conclusion that the body given the power to adjudicate disputes arising under the Constitution, and Article 3 Section 2 surely did that, indeed had the power to review the actions of the other two governmental branches for their constitutionality. That authority was extended to the appellate review of state court decisions having constitutional implications under the defensible conclusion that by ratifying the Constitution in the first place, the states had ceded to the United States that appellate jurisdiction, which is clearly contained in Article 3 Section 2 (see the decision in Cohens).
Once the Court under Marshall's leadership had made those judgments, the full American power structure quickly came to agree with him. The Jeffersonians did make several modest attempts to undermine the independence and authority of the Supreme Court, but failed, and ultimately gave up. From that time onwards, American jurisprudence came to be firmly established in the legal structure that Chief Justice Marshall had constructed on the Constitution's base, as he interpreted it.
One very important principle set forth by Marshall, and subsequently accepted by all parties to American government down to the Transition Era [that is, in the book, the period of transition from Constitutional Democracy to the fascist government that eventually established the apartheid state of the New American Republics] was that the Constitution was a document that meant more than it explicitly said, that was open to interpretation, and held within itself "im plications." And by implication that meant the Constitution was a document that could grow and change with changing times and circumstances, that it was indeed designed to grow and change with changing times and circumstances.
During the Transition Era there came to be propounded what the Supreme Court Bulletin's summary of Anderson refers to as the "Doc trine of Original Intent." One of its early protagonists was one Edwin Meese, the most prominent of President Ronald Reagan's several Attorneys General, later President of Right-Wing Reaction's Transition Era coordinating body, the highly secretive Council for National Policy. A former local prosecutor with no back ground in Constitution al law, a lawyer who once was supposed to have said that if the police arrested some one that was evidence enough he or she was guilty, Meese held that if it wasn't in the Constitution, in clear language, it didn't exist. (Meese later became the head of the National Council on Policy, the highly secretive coordinating body for a wide range of Reactionary Republican and Christian Rightist organizations during the run-up to fascism.)
A more cerebral proponent of the Doctrine was one Robert Bork. He had two principal claims to fame. One was that as the third"'ranking Justice Department official in 1973, on the orders of President Richard M. Nixon he fired a supposedly independent prosecutor during the scan dal that eventually came to be known by the name "Watergate" and that eventually led to Nixon's resignation as President. (Bork's two superiors at the time both resigned rather than carry out an order which in deed was later found to be unlawful.)
The other was that he was the most celebrated failed Supreme Court nominee in the history of the old U.S. And his nomination failed precisely because he held to Constitutional theories that were completely at odds with those held by almost everyone else at the time considered to be an authority on the mat ter. But his time eventually came. The Court did adopt the theory he espoused so eloquently in so many legal papers and articles. Summarizing the theory, Bork held that (1993):
". . . principles not originally understood to be in the Constitution [have no constitutional validity]. Where the Constitution is silent, [a Supreme Court] Justice has no [legislative review] authority. To act against legislation without authority is to engage in civil disobedience from the bench and to perpetrate limited coups d'e'tat that overthrow the American form of government."
By implication, of course, Bork was attacking Marshall, because what he found in the Constitution was certainly not originally under stood to be there (assuming that "originally" in this context means "when the Constitution was written"). And by so doing, Bork was in the front of a movement to deny 200 years of American jurisprudence. His, in essence, was the thinking behind Anderson.
It is interesting that Bork's theory of Original Intent would appear to have much in common with the theory of "Biblical Innerantism" that was all the rage among the Religious Right during the Transition Era and pro vided a major piece of the foundation of the thinking that lead to American Fascism. But that's another story, one we will get to later.
A spirited attack on the theory of Original Intent had been offered a few years before Bork wrote the article cited above by Judge Irving R. Kaufman, a Federal Circuit Court of Appeals judge (1987):
"I regard reliance on original intent to be a largely specious mode of interpretation. I often find it instructive to consult the Framers when I am called upon to interpret the Constitution, but it is the beginning of my inquiry, not the end. For not only is the quest for 'intent' fraught with obstacles of a practical nature -- notably that the Framers plainly never foresaw most of the problems that bedevil the courts today -- it may also be more undemocratic than competing methods of construing the Constitution.
"If the search for 'intent' sums up the constitutional enterprise, then cur rent generations are bound not merely by general language but by specific conceptions frozen in time by men long dead. . . .
"The open"' textured nature of most of the vital clauses of the Constitution signifies that the drafters expected future generations to adapt the language to modern circumstances, not con duct judicial autopsies into the minds of the Framers. When the Founding Fathers talked about due process, equal protection and freedom of speech and religion, they were embracing general principles, not specific solutions [emphasis added]."
Kaufman here is of course defending the expansive approach to Constitutional interpretation that lead to the broadening of protections for individual rights that so enraged Right"'Wing Reactionaries in the latter half of the 20th century and lead eventually to Anderson.
In Anderson a group of Right"'Wing Reactionary justices overturned the whole U.S. legal tradition from the time of the founding and organization of the Republic because they didn't like the outcomes that tradition had produced. With the Court out of the way, by its own hand no less, Right"'Wing Reaction had succeeded in emasculating the powers of one of the three protectors of American constitutional democracy, the Courts, the media, and the Congress, on which it had set its sights during the Transition Era [sound familiar, folks?]. Thus Anderson significantly accelerated the development of fascism in the old U.S. But who ever said that the Court was not always truly a political institution (Rodell)?
References:
Bork, R., "The Senate's Power Grab," New York Times, June 23, 1993.
Cox, A., The Court and the Constitution, Boston, MA: Houghton Mifflin, 1987, pp. 58, 59, 63, 66, 75, 342, 360.
Kaufman, I.R., "No Way to Interpret the Constitution," New York Times, Jan. 2, 1987.
Rodell, F., Nine Men: A Political History of the Supreme Court from 1790 to 1955, New York: Random House, 1955.
Supreme Court Bulletin (Windham, NH), "Supreme Court Has No Constitutional Review Authority," Vol. 24, No. 8, June 2003, p. 3.
He may be dead, but many of his doctrines --- like supporting school prayer to the hilt --- are still alive.
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Author's Note (from the book): The [real] "Helms Amendment," offered in Congress a number of times from the early 1980s onwards by Senator Jesse Helms (R"'NC) (Cox) and his ideological successors, was finally passed by the [fictional] 107th Congress in 2001. The language was unchanged from that version offered by Senator Helms in 1991 as S. 77: "Sec. . (a) This section may be cited as the 'Voluntary School Prayer Act'. (b) (1) Chapter 81 of title 28, United States Code, is amended by adding at the end thereof the following new section: #1260. Appellate jurisdiction: limitations '(a) Notwithstanding the provisions of sections 1253, 1254, and 1257 of this chapter and in accordance with section 2 of Article III of the Constitution, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any case arising out of any State statute, ordinance, rule, regulation, practice, or any part thereof, or arising out of any act interpreting, applying, enforcing, or effecting any State statute (and etc.) which relates to voluntary prayer, Bible reading, or religious meetings in public schools or public buildings . . .'"
My (Steven Jonas') Note: Yes, folks, I did not make the Jesse Helms stuff up. He really did want to strip the Supreme Court (and presumably the lower Federal courts as well) of the power of Judicial Review. Which is precisely the view that the new Acting Attorney General holds to as well, or at least did at one point in his career.